NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1793-11T4

LISA MCLEAN, Administratrix ad

Prosequendum of the Estate of

Kevin McLean, and LISA MCLEAN,

Individually,

Plaintiff-Appellant,

v.

LIBERTY HEALTH SYSTEM, GREENVILLE

HOSPITAL, and A. KHAN, M.D.,

Defendants-Respondents,

and

JERSEY CITY MEDICAL CENTER,

MANUEL ARAGONES, M.D. and

SURRIAYA KHANUM, M.D.,

Defendants.

_______________________________________

Submitted November 8, 2012 - Decided

Before Judges Fuentes, Ashrafi and Hayden.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Docket No.

L-3890-08.

Drazin and Warshaw, P.C., attorneys for

appellant (John R. Connelly, Jr., on the

brief).

APPROVED FOR PUBLICATION

March 28, 2013

APPELLATE DIVISION

March 28, 2013

A-1793-11T4 2

Wahrenberger & Pietro, L.L.P., attorneys for

respondents, Liberty Health System and

Greenville Hospital (Judith A. Wahrenberger,

of counsel; Lindsay B. Beaumont, on the

brief).

James B. Sharp & Associates, L.L.C.,

attorneys for respondent, A. Khan, M.D. (Mr.

Sharp, of counsel and on the brief; Peter

Espey, on the brief).

The opinion of the court was delivered by

ASHRAFI, J.A.D.

An undetected infection left a sixteen-year-old boy

paralyzed and allegedly led to his death. Plaintiff, who is the

boy's mother and the administratrix of his estate, filed a

medical malpractice lawsuit claiming that an emergency medical

doctor who treated her son twice within three days should have

discovered the infection. Defendants contended that the

patient's symptoms gave the doctor no reason to suspect an

infection. The jury’s verdict was that plaintiff did not prove

medical malpractice.

Plaintiff now appeals, asserting that several errors at the

trial tainted the jury's verdict, and also, that the verdict was

against the weight of the evidence. We reverse and order a new

trial. The trial court should not have prohibited plaintiff

from presenting the testimony of a second expert witness on the

subject of medical malpractice because his testimony would be

duplicative.

A-1793-11T4 3

I.

Kevin McLean was born in 1988. On September 24, 2005, when

Kevin was sixteen-years-old, he and some friends were assaulted

in Jersey City, and Kevin was stabbed in the thigh and in the

arm. Plaintiff-mother, Lisa McLean, rushed to the scene, and

Kevin was taken by ambulance to Jersey City Medical Center. His

wounds were treated in the emergency department, and he was

discharged with a prescription for an antibiotic. Kevin

followed up on the care of his wounds with his primary care

physician, pediatrician Reginald Coleman, and the wounds

appeared to have healed within a few weeks.

About six weeks after the stabbing, on November 9, 2005,

Kevin complained of low back pain, which was radiating into his

left leg. Plaintiff took him to the emergency room at

Greenville Hospital that afternoon. Kevin and his mother did

not draw a connection between the stabbing and the back pain,

and they did not volunteer information about the stabbing

injuries at the emergency department in Greenville Hospital.

About three hours after he arrived at the hospital, Kevin was

examined by defendant, Dr. Anwar Khan. The doctor ordered

urinalysis and an x-ray of the back, both of which were normal.

The doctor diagnosed Kevin with a back sprain and administered

A-1793-11T4 4

pain medication. Kevin's pain improved quickly, and the doctor

discharged him from the hospital at about 10:00 that night.

Two days later, on November 11, Kevin's back pain had

worsened and was now radiating into both legs. He was walking

with a visible limp. Plaintiff took him again to the emergency

department at Greenville Hospital, and again Kevin was seen by

Dr. Khan. This time, the doctor ordered two CT scans, both

without intravenous contrast.1

The scans were unremarkable. The

doctor diagnosed Kevin with sacroiliitis, a type of joint

inflammation. He discharged Kevin with prescriptions for a pain

reliever and a muscle relaxant and instructed him to follow-up

with his own doctor.

Kevin's condition did not improve over the next several

days. On November 15, he was seen by Dr. Coleman, who observed

that Kevin did not "look right" and had him admitted at Jersey

City Medical Center. Kevin's condition declined rapidly. After

several tests, he was transferred to St. Joseph's Medical

Center. There, he went into cardiac arrest and became comatose.

Kevin was eventually diagnosed with methicillin-resistant

1

CT, short for computed tomography, is an imaging procedure that

uses a computer to interpret data from x-rays and to produce an

image of a selected area of the body. Stedman's Medical

Dictionary 1996 (28th ed. 2006). Intravenous contrast enhances

the ability to see certain structures on the CT scan.

A-1793-11T4 5

staphylococcus aureus (MRSA), a type of staph infection that

resists antibiotics.

Despite the treatment that was administered at St. Joseph's

hospital, Kevin's blood tests did not come back negative for

infection until November 22. In addition, doctors performed a

CT-guided aspiration of Kevin's upper thigh, from which they

drained a half liter of pus.

Kevin began to regain consciousness in December, but the

damage was already done. The infection and cardiac arrest

caused brain damage that paralyzed him from the neck down. He

spent the rest of his life in either a hospital bed or a nursing

home. Two years after his visits to Greenville Hospital, Kevin

died on October 27, 2007, of complications from his

quadriplegia.

Plaintiff filed her medical malpractice complaint in August

2008, naming as defendants Greenville Hospital, Dr. Khan, and

Liberty Health System, as well as Jersey City Medical Center and

other doctors. Defendants other than those associated with

Greenville Hospital were dismissed from the case without finding

that they had any liability for Kevin's injuries and death. The

trial of the malpractice case against the Greenville Hospital

A-1793-11T4 6

defendants2

was conducted from September 19 to October 5, 2011.

The trial focused on expert testimony to establish what caused

Kevin's infection and eventual death. The witnesses at trial

were plaintiff-mother, Kevin's grandmother, defendant-doctor,

and a total of six expert witnesses, four called by plaintiff

and two by defendant. Each side presented an expert on the

standard of care in emergency medicine, as well as an expert in

infectious diseases. Plaintiff also presented expert testimony

from a radiologist and a forensic economist. As we will

discuss, plaintiff had consulted with additional experts and was

prepared to present their testimony as well, but the court had

informally granted a pretrial motion of defendant that

restricted each side to one expert witness on any subject or

specialty relevant to the case.

The jury returned a verdict that defendant was not

negligent in his treatment of Kevin. The trial court denied

plaintiff's motion for a new trial, and judgment was entered in

favor of defendant. Plaintiff then filed this appeal.

2

Plaintiff's claims against Greenville Hospital and the entity

that owned it were based solely on the doctrine of respondeat

superior, legal responsibility for the alleged negligence of Dr.

Khan as the emergency room doctor. In the remainder of this

opinion, we will refer to the Greenville Hospital defendants in

the singular as “defendant.”

A-1793-11T4 7

II.

We agree with plaintiff that the trial court erred in

prohibiting plaintiff from presenting testimony by a second

malpractice liability expert and that the error entitles

plaintiff to a new trial.

In preparation for the trial, plaintiff consulted with and

prepared to call at the trial five medical expert witnesses:

James Bagnell, M.D., an emergency department physician; Alan

Schechter, M.D., also an emergency department physician; William

Matuozzi, M.D., a radiologist; Mark Cooper, M.D., another

radiologist; and Arthur Klein, M.D., an infectious disease

physician.3

Our record on appeal does not document how the trial

court's limitation on the number of experts came about. We do

not have a record of a formal pretrial motion or an actual

ruling on the record limiting each side to one expert in a

specific field of medicine. It appears from counsel's comments

during the trial and statements in the appellate briefs that

defendant moved to limit the number of expert witnesses that

3

Plaintiff also presented testimony at the trial from a non-

medical expert witness, forensic economist Royal Bunin, M.B.A.,

on the subject of plaintiff's economic loss for the wrongful

death claim. Defendant's experts at the trial were Michael

VanRooyen, M.D., an emergency department physician; and Chester

Smialowicz, M.D., an infectious disease physician.

A-1793-11T4 8

could testify before the jury and that the trial court indicated

informally its favorable inclination on the motion.

On the morning of jury selection, the trial court and the

attorneys discussed the list of anticipated witnesses who would

testify. The court reminded plaintiff's attorney of its

"understanding" that plaintiff would not call all of her expert

witnesses to testify. Plaintiff's attorney referred to the

trial court's "preliminary indication[] about a ruling that

[plaintiff] should not use two E.R. doctors and two

radiologists." Apparently accepting the court’s ruling at that

time without making a formal objection, counsel named Dr.

Bagnell as the emergency department expert who would testify for

plaintiff.

Dr. Bagnell was expected to testify, and did later testify

before the jury, that defendant deviated from the accepted

standard of medical care for an emergency department physician

on both visits of Kevin to Greenville Hospital, November 9th and

November 11th. Dr. Bagnell's opinion was that deviation

occurred when defendant failed to elicit from Kevin his recent

history of stab wounds, failed to palpate the patient and

independently discover the wounds, and also failed to perform a

CT scan with contrast, which would have revealed the infection.

A-1793-11T4 9

Before Dr. Bagnell testified, during counsel's opening

statements to the jury, Dr. Khan's attorney made a remark that

prompted plaintiff's attorney to revisit the issue of the

court's restriction on the number of expert witnesses. In his

opening statement, defense counsel remarked:

[W]e will prove to you that no emergency

room physician with a possible exception of

Dr. Bagnell, plaintiff's expert who is going

to testify here, would ever have thought for

a scintilla of a moment that this is a

patient with an infection. None.

This statement was false. Dr. Schechter's expert report for

plaintiff concluded that the accepted standard of care had been

met by defendant's treatment of Kevin on November 9th, but it

also indicated that on November 11th, when the back pain

persisted and increased, "the standard of care required that an

infectious or compressive cause for Mr. McLean's back pain be

searched for." Dr. Schechter summarized his opinion as follows

regarding November 11th:

Mr. McLean presented for a second time to

the emergency department at Greenville

Hospital on November 11, 2005 with three to

four days of back pain radiating to his

legs. The workup that was done on that day

did not meet the accepted standard of

medical care. Needed blood tests were not

done. A needed rectal temperature was not

done. Needed appropriate imagings were not

done. Mr. McLean was prematurely discharged

from the Greenville Hospital emergency

department on November 11, 2005.

A-1793-11T4 10

After the opening statements, plaintiff's attorney moved

for reconsideration of the limitation on expert witnesses.

Counsel argued that he had complied with the court's instruction

to choose one emergency department expert to testify and that

defense counsel had now told the jury "that there's no other ER

doctor in the world save the witness that we intend to put on

the stand that shares the opinion that his client did anything

wrong." Plaintiff's attorney requested that the court either

allow Dr. Schechter to testify or inform the jury that plaintiff

had a second emergency department expert that contradicted

defense counsel's remark. Defense counsel responded that the

opinions of plaintiff's two emergency department experts were

not consistent and that plaintiff had to "take [her] pick." The

court stated it would review the expert reports and then rule on

plaintiff's application.

At the conclusion of the trial day, the court denied

plaintiff's request to allow Dr. Schechter to testify. The

court described defense counsel's remark as "just hyperbole . .

. [a] passionate attorney losing his cool for . . . two

seconds." The court could think of no reasonable way to correct

defense counsel's "one line that may have misrepresented a fact"

and believed the jury would not be affected by the remark.

Describing Dr. Schechter’s testimony as "duplicative," the court

A-1793-11T4 11

ruled that plaintiff would not be permitted to "bring in another

expert because he says basically the same thing that your

current expert says." The court also commented that plaintiff

probably would not want to call Dr. Schechter before the jury

because he disagreed with part of Dr. Bagnell’s opinions and the

latter expert provided "more deviation testimony" in support of

plaintiff’s case. Having been rebuffed, plaintiff proceeded at

trial with only Dr. Bagnell's testimony on the subject of

defendant’s alleged deviation from accepted standards of medical

care and treatment.

We now hold that the trial court erred in limiting expert

witnesses to only one per side for each relevant field of

medicine, in particular, on the crucial issue of deviation from

accepted standards of medical care. The court's pretrial ruling

was a mistaken exercise of its discretionary authority to

control the presentation of evidence at the trial. See N.J.R.E.

611(a) ("court shall exercise reasonable control over the mode

and order of interrogating witnesses and presenting evidence").

Nothing in our rules of evidence, or other laws or rules, gives

a trial court authority to balance the number of witnesses

presented by each side at the trial. Nor is the trial court

authorized by N.J.R.E. 403 or any other rule or law to bar

A-1793-11T4 12

crucial evidence merely on the ground that it duplicates another

witness's testimony.

A trial court would likely abuse its discretion if it

imposed a limitation of only one witness for each side to

testify on a factual matter that is vital to the resolution of a

disputed issue. To illustrate the point with a hypothetical

example, in a typical car accident case where the driver's

negligence is disputed, the trial court would err if it barred

testimony on the ground of duplication by a second eyewitness,

who would testify essentially identically to another eyewitness,

that the traffic light was red or that the driver was speeding

or driving erratically. In the general charge to the jury,

courts often instruct that the number of witnesses is not

controlling in deciding whether a party has met its burden of

proof. See Model Jury Charge (Civil), 1.12I, "Preponderance of

Evidence" (2012). But at the same time, the jury is not

prohibited from considering whether more than one witness has

attested under oath to a fact that is important to deciding a

contested issue. Corroboration of a fact by more than one

witness can be very important in seeking the truth. See, e.g.,

N.J.S.A. 9:6-8.46(a); State v. Walker, 417 N.J. Super. 154, 165

(App. Div. 2010).

A-1793-11T4 13

We see no reason that expert testimony should be treated

wholly differently from factual testimony with respect to vital

opinions that go to the heart of the disputed issues in the

case. Especially in a case such as this where the jury's truth-

finding function required choosing between the opinions of

experts, the parties should have been permitted to corroborate

the testimony of their experts with other experts who reached

similar conclusions.

Expert testimony may be more complex and time-consuming

than factual testimony, such as the facts we referenced in our

hypothetical example. The trial court has discretion to exclude

expert testimony under N.J.R.E. 403 that may unduly delay or

complicate the trial without sufficient probative value. Such a

ruling, however, must be made formally, on the record, and in

accordance with the rules of evidence. We disapprove of the

procedure employed in this case by which the trial court

informally — perhaps off-the-record during conference with the

attorneys in chambers — restricted the witnesses that a party

may call to testify.4

Under N.J.R.E. 403, the trial court may exercise its

discretion to exclude evidence because "its probative value is

4

To be fair, it is also the function of counsel to make a record

of any pretrial ruling with which a party disagrees.

A-1793-11T4 14

substantially outweighed by the risk of (a) . . . confusion of

issues . . . (b) undue delay, waste of time, or needless

presentation of cumulative evidence." See Green v. N.J. Mfrs.

Ins. Co., 160 N.J. 480, 495 (1999). The burden lies with the

party seeking exclusion of the evidence to show that the

probative value is substantially outweighed by one or more of

the factors listed in Rule 403. State v. Morton, 155 N.J. 383,

453 (1998).

A leading practice manual on the New Jersey Rules of

Evidence states: "Although clause (b) of N.J.R.E. 403 cites

'undue delay, waste of time, or needless presentation of

cumulative evidence' as reasons for excluding evidence under the

Rule, it is difficult to find reported decisions which rely on

such reasons alone." Biunno, Weissbard & Zegas, Current N.J.

Rules of Evidence, comment 4 on N.J.R.E. 403 (2012). Cases

relying on this portion of the Rule often involve issues

tangential to the central dispute in the case. See Showalter v.

Barilari, Inc., 312 N.J. Super. 494, 514 (App. Div. 1998)

(evidence of the plaintiff's blood alcohol content in a dram

shop case, offered to prove that the defendant served him

alcohol, was needlessly cumulative where other evidence

established the fact); State v. Taylor, 226 N.J. Super 441, 451

(App. Div. 1988) (evidence of witness's character for truth and

A-1793-11T4 15

veracity was properly excluded, since admission would have

required time for prosecution to locate rebuttal witnesses, and

the collateral dispute about general credibility of the witness

may have confused the jury).

Here, the testimony that plaintiff wished to present went

to the heart of her case: whether defendant deviated from

accepted standards of care for an emergency department

physician. Although a second expert would have taken more time

at the trial, it might have been time well-spent. In the field

of medicine, second opinions are often sought to test the

accuracy of a diagnosis or the benefits and risks of proposed

treatment. Surely it cannot be said that additional expert

testimony in a case that involved complicated issues of

emergency and diagnostic medicine had such low probative value

as to be substantially outweighed by its partially repetitive

nature.

We note that Rule 403 does not refer to "duplicative

evidence" but to "needless . . . cumulative evidence" that might

cause undue delay in the trial and a waste of time. By our

holding today, we do not preclude a trial judge from excluding

expert evidence when its cumulative nature substantially

outweighs its probative value. We hold, however, that two

expert witnesses on the central issue of liability in a medical

A-1793-11T4 16

malpractice case do not per se reach the level of needless

cumulative evidence that substantially outweighs its probative

value. The trial court mistakenly exercised its discretion in

granting defendant's pretrial motion to limit expert witnesses

to one on each side on a central disputed issue in the case.

In addition, whatever discretionary authority the trial

court theoretically may have had to limit each side to a single

emergency department expert, that authority dissipated once

defense counsel misused the court's pretrial ruling and falsely

told the jury that no emergency medicine expert save one would

have considered an infection as the cause of Kevin's symptoms.

An attorney may not take advantage of a favorable evidentiary

ruling and make statements that are "contrary to facts which

[the other party] was precluded from adducing." State v.

McGuire, 419 N.J. Super. 88, 144 (App. Div) (quoting State v.

Ross, 249 N.J. Super. 246, 250 (App. Div.), certif. denied, 126

N.J. 389 (1991)), certif. denied, 208 N.J. 335 (2011). Having

successfully moved before trial to exclude one of plaintiff's

two emergency department experts, defense counsel made an

inaccurate statement to the jury that plaintiff was powerless to

disprove because of the court's ruling.

The trial court recognized the impropriety of the remark,

but it concluded that it was "not critical" to the plaintiff's

A-1793-11T4 17

case. Plaintiff's case was that a doctor performing up to the

accepted standard of care would have considered an infection as

a potential cause of Kevin's otherwise undiagnosed back and leg

pain, and the doctor would have ordered additional tests to

confirm or exclude that potential cause. Defense counsel's

false assertion succinctly summarized the defense position that

such a diagnosis was not warranted. The remark struck at the

core of the dispute. It required a response, which plaintiff

was prepared to give before the trial began. The court should

have reconsidered the limitation it placed on expert testimony

and allowed plaintiff to present Dr. Schechter as an expert

witness. His testimony would not have been a waste of time and

would not have unduly delayed the trial.

Any concern about the divergence in the opinions of

plaintiff's liability experts was for plaintiff and her attorney

to weigh in deciding whether to call Dr. Schechter before the

jury. Plaintiff's attorney might have argued in summation that

the differences in the opinions of plaintiff’s experts showed

that they performed their evaluations independently and, in

fact, bolstered their credibility. A trial judge must avoid

infringing on the parties' right to present their proofs through

their chosen witnesses, which is "an essential element in the

conduct of a trial." Cardell, Inc. v. Piscatelli, 277 N.J.

A-1793-11T4 18

Super. 149, 155 (App. Div. 1994) (internal quotation mark

omitted); accord Peterson v. Peterson, 374 N.J. Super. 116, 125

(App. Div. 2005).

Because the excluded testimony of Dr. Schechter was crucial

to plaintiff’s allegations of malpractice and might have

affected the jury's verdict, it was reversible error to exclude

it. Plaintiff is entitled to a new trial.

III.

Plaintiff also contends that the trial court erred in

denying her motion at the end of all evidence for a directed

verdict on apportioning of damages between defendant's alleged

negligence and the pre-existing infection. Defendant responds

that it presented evidence from which the jury could conclude

that Kevin's injuries and death would have occurred even if

defendant had ordered additional diagnostic tests. Furthermore,

defendant contends that the jury never reached issues of

proximate cause and its apportioning between Kevin's pre-

existing condition and defendant's alleged negligence. The

jury's deliberations ended upon its finding that defendant was

not negligent. Additionally, plaintiff did not object to the

jury instructions the court gave on a pre-existing condition and

proximate cause.

A-1793-11T4 19

The issue is moot because the jury did not reach any

question on the verdict form on proximate causation and its

apportioning. We nevertheless comment upon the issue because it

may again be presented on a retrial. We conclude that the trial

court did not err in denying plaintiff's motion for a directed

verdict, as it was presented. But the court should not have

asked the jury on this trial record to apportion proximate

causation in terms of percentages between the pre-existing

condition and defendant's alleged negligence.

In Scafidi v. Seiler, 119 N.J. 93 (1990), the Court

addressed causation and damage questions in cases in which a

plaintiff suffered from a pre-existing condition that combined

with the defendant's medical malpractice to cause harm. In such

situations, practical realities require that the standard for

proximate causation be modified. To succeed in such a case, the

plaintiff must show that: (1) the defendant deviated from the

applicable standard of care; (2) the deviation increased the

risk of harm to the plaintiff from a pre-existing condition; and

(3) the increased risk was a substantial factor in producing the

ultimate result. Id. at 108. The defendant should only be held

responsible for the portion of the harm attributable to his or

her conduct, but the defendant bears the burden of proving that

the plaintiff's damages can be apportioned between the defendant

A-1793-11T4 20

and the pre-existing condition. Id. at 110; accord Fosgate v.

Corona, 66 N.J. 268, 272-73 (1974).

Here, plaintiff alleged that Kevin was suffering from a

pre-existing MRSA infection when defendant examined him on

November 9th and 11th. Plaintiff had the burden of proving that

negligent diagnosis and treatment by defendant on one or both

dates increased the risk of the injuries and death caused by the

infection, but defendant had the burden of proving an

appropriate apportionment of proximate causation in terms of

percentages. See Verdicchio v. Ricca, 179 N.J. 1, 24 (2004);

Reynolds v. Gonzalez, 172 N.J. 266, 282 (2002); Scafidi, supra,

119 N.J. at 108.

Although Dr. Smialowicz testified for the defense that the

infection was not present on or before November 11th, he also

testified that defendant's alleged deviation from the standard

of care would have made no difference in Kevin's condition. On

cross-examination, plaintiff's attorney asked Dr. Smialowicz to

assume that blood had been taken on November 11th, that the MRSA

infection was discovered, and that antibiotics were started

immediately. Dr. Smialowicz stated that starting antibiotics at

that point "would not have changed anything." Similarly, on re-

direct examination, defense counsel asked Dr. Smialowicz if the

outcome would have been different had antibiotics been started

A-1793-11T4 21

promptly after November 11th. Dr. Smialowicz said no. This

testimony amounts to the defense's denial that the alleged

negligence of defendant increased the risk of harm to Kevin.

Dr. Smialowicz's testimony permitted the jury to conclude that

the alleged negligence of defendant was not a substantial factor

in bringing about Kevin's injuries and death and that the pre-

existing infection was the sole proximate cause. The trial

court appropriately viewed the defense case as contending that

the jury should allocate 100% proximate causation to the pre-

existing condition and zero to defendant's alleged negligence.

Consequently, the court correctly denied plaintiff's motion for

a directed verdict on whether the pre-existing condition was the

proximate cause of Kevin's injuries and death.

Defendant presented no evidence, however, to satisfy the

defense burden of proof on apportionment of proximate cause in

any different percentages. In Verdicchio, supra, 179 N.J. at

37-38, the Court held that the defense expert's testimony that

the "ultimate outcome" would have been the same if cancer had

been diagnosed and treated earlier was insufficient to carry the

defendant's burden of proving apportionment between the pre-

existing condition and the misdiagnosis.

Plaintiff is correct in arguing that a question asking the

jury to determine percentages of proximate causation was not

A-1793-11T4 22

warranted in this case based on the evidence presented.

Instead, the jury should only have been asked whether plaintiff

proved that the increased risk of harm resulting from

defendant's negligence was a substantial factor in causing

Kevin's injuries and death. See Reynolds, supra, 172 N.J. at

285-86; Scafidi, supra, 119 N.J. at 108-09. In the context of

that question, the court would also instruct the jury that

defendant asserted the infection was the sole proximate cause

and defendant’s alleged deviation was not a substantial factor

in causing the injuries and death.

On retrial, the court should consider again the issue of an

appropriate jury charge and tailor the charge to the proofs as

presented.

IV.

For purposes of completeness in the event of further

appeal, or as further guidance for a retrial, we add the

following brief comments to address other issues plaintiff has

raised.

We reject plaintiff's argument that the jury's verdict was

against the weight of evidence. The defense experts testified

that Kevin's symptoms were inconsistent with an infection and

that defendant had no reason to conduct tests to determine

whether an infection was causing Kevin's back pain. Dr.

A-1793-11T4 23

Smialowicz testified that the virulent infection that paralyzed

Kevin did not occur until after Kevin's second visit to

Greenville Hospital on November 11th. The jury could credit the

testimony of defendant's experts and conclude that defendant did

not deviate from accepted standards of care.

Nor did the trial court abuse its discretion in concluding

that the jury's verdict was not the product of improper

influence, such as undue sympathy for defendant, or on

impatience in seeking to reach a verdict. Those arguments of

plaintiff do not warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

We also conclude that the trial court correctly granted

defendant's application for redaction of small parts of the

medical records admitted in evidence. Plaintiff offered in

evidence records from St. Joseph's Medical Center and the

convalescent hospitals to which Kevin was later admitted. The

records contained statements that attributed the MRSA infection

to the September 2005 stabbing injuries, conclusions that

conformed to the opinion of plaintiff's infectious disease

expert, Dr. Klein, and were contradicted by defendant's expert

in the same field, Dr. Smialowicz. Although the bulk of the

medical records were admissible pursuant to N.J.R.E. 803(c)(6)

(business records) and N.J.R.E. 803(c)(4) (statements made for

A-1793-11T4 24

the purpose of medical diagnosis or treatment), disputed

opinions about Kevin's diagnosis, the cause of his infection,

and the length of time that the infection existed were properly

excluded from the records in accordance with N.J.R.E. 808. See

Nowacki v. Cmty. Med. Cntr., 279 N.J. Super. 276 (App. Div.),

certif. denied, 141 N.J. 95 (1995); see also Agha v. Feiner, 198

N.J. 50, 63 (2009) (while experts may refer to a medical report

from a non-testifying expert to apprise the jury of the basis of

an opinion, N.J.R.E. 703 "was not intended as a conduit through

which the jury may be provided the results of contested out-of-

court expert reports").

Next, plaintiff argues that defendant's emergency

department expert, Dr. VanRooyen, was permitted to change his

testimony at trial without adequate notice to plaintiff,

contrary to McKenney v. Jersey City Medical Center, 167 N.J. 359

(2001). Dr. VanRooyen had stated in his deposition that

defendant had ordered a blood test on November 9th. Shortly

before the trial began, he corrected that mistake and eventually

testified that he meant defendant had ordered a urinalysis, not

a blood test. Plaintiff's attorney sought to cross-examine Dr.

VanRooyen as to whether a blood test should have been ordered.

The trial court sustained defendant's objection and ruled that

no expert for plaintiff had testified that a blood test should

A-1793-11T4 25

have been ordered, and so, that alleged form of negligence was

not a relevant issue before the jury.

On retrial, Dr. Schechter will presumably testify

consistently with his report that a blood test should have been

ordered on November 11th. The factual predicate for the trial

court's ruling will no longer be present, but a ruling on

whether Dr. VanRooyen may be asked about the need for a blood

test must await the circumstances presented at the retrial. The

tardy correction of Dr. VanRooyen's deposition error is now moot

as an issue of fair notice to plaintiff. Presumably, Dr.

VanRooyen can be cross-examined again at the retrial regarding

his error as relevant to his credibility as an expert witness.

Reversed and remanded for a new trial.